Posted
by
BeauHDon Wednesday April 25, 2018 @09:00AM
from the free-for-all dept.

An anonymous reader quotes a report from The Washington Post: California man Eric Lundgren, an electronic waste entrepreneur who produced tens of thousands of Windows restore disks intended to extend the lifespan of aging computers, lost a federal appeals court case in Miami after it ruled "he had infringed Microsoft's products to the tune of $700,000," the Washington Post reported on Tuesday. Per the Post, the appeals court ruled Lundgren's original sentence of 15 months in prison and a $50,000 fine would stay, despite the software being freely available online and only compatible with valid Windows licenses: "The appeals court upheld a federal district judge's ruling that the disks made by Eric Lundgren to restore Microsoft operating systems had a value of $25 apiece, even though they could be downloaded free and could be used only on computers with a valid Microsoft license. The U.S. Court of Appeals for the 11th Circuit initially granted Lundgren an emergency stay of his prison sentence, shortly before he was to surrender, but then affirmed his original 15-month sentence and $50,000 fine without hearing oral argument in a ruling issued April 11." All told, the court valued 28,000 restore disks he produced at $700,000, despite testimony from software expert Glenn Weadock that they were worth essentially zero.

That's because 99.9% of jury members aren't aware of jury nullification and the true power they wield. Trial lawyers definitely don't want juries to know about that right, either - especially prosecutors - because those jurors become wildcards. If the lawyers even get a hint of a juror knowing about it, they are thrown out of the jury pool during the selection process.

Strange isn't it, that we allow governors and presidents power to usurp law by use of pardon. But when we the people want to do the same through jury nullification we are shunned by authority. It is your right and duty in cases of gross unjust punishment to use jury nullification.

Jury nullification is, by necessity, a complete undermining of the legal and judicial process. It is essentially taking the Constitutional architecture for our three branches of government, throwing it out the window, and saying "this mob will rule today". To ask a jury to nullify a case is to declare no confidence in the duly-elected representatives, judges, or attorneys involved.

It is the ultimate power of the people, as the judicial equivalent of a nuclear weapon. There is no return, no appeal, and no way to fix the harm caused by a jury nullifying inappropriately. It is a power that should be used when there is no other option that aligns with America's founding principles. If an executive branch starts persecuting religious leaders, nullification would be appropriate. If people are being prosecuted simply for meeting each other, nullification is appropriate. If someone is being tried for their thoughts rather than their actions, nullification would be appropriate.

I, for one, can't trust that someone promoting nullification can actually respect the law or its application. In the public eye, it's become seen as a minor anarchy; just a way to escape consequences for crimes against acceptable targets. After all, who cares if it's Microsoft, or Disney, or Monsanto being harmed? How bad can it be to remove legal protection from groups or people we don't like, anyway?

Now in this case, Lundgren violated the letter, spirit, and intent of the law. There are other (legal) routes to accomplish what he tried to do. Just because we happen to agree with the cause he champions is no reason to tear down the pillars of justice. It's just not worth the high cost.

If it's a specific law you don't trust, ask your representatives to have that law changed, either through a direct petition or through indirect activism. That's how the system is designed to work, in accordance with the Constitution. As the saying goes, there are the four boxes of liberty: soap, ballot, jury, and ammo. The third box is when the first two have failed completely.

Advocating for change of the law is good, but it doesn't help the poor guy whose life is destroyed by "proper" application of an existing unjust law. That's where things like prosecutorial discretion and jury nullification come in.

It doesn't do anything to the law, though. It only nullifies the specific case. The whole premise of a law-abiding society is that the laws are predictable and fairly applied. Using jury nullification turns the legal system into a popularity contest, where the winners can get away with anything if they can convince enough jurors that they should be above the law.

If you want to get rid of a bad law, the best way to do that is to convince your representative to take up that cause, or even run for that positio

I've always found the most interesting example of the "commit the crime on purpose to get the law in front of a court" case to be Plessy v Ferguson [wikipedia.org] where everyone involved, the perpetrator, "victim," and arresting agent were all intent on having the law overturned. And failed:

In 1890, the state of Louisiana passed the Separate Car Act, which required separate accommodations for blacks and whites on railroads, including separate railway cars. Concerned, a group of prominent black, creole, and white New Orleans residents formed the Comité des Citoyens (Committee of Citizens) dedicated to repeal the law or fight its effect. They persuaded Homer Plessy, a man of mixed race, to participate in an orchestrated test case. Plessy was born a free man and was an "octoroon" (of seven-eighths European descent and one-eighth African descent). However, under Louisiana law, he was classified as black, and thus required to sit in the "colored" car.

On June 7, 1892, Plessy bought a first-class ticket at the Press Street Depot and boarded a "whites only" car of the East Louisiana Railroad in New Orleans, Louisiana, bound for Covington, Louisiana. The railroad company, which had opposed the law on the grounds that it would require the purchase of more railcars, had been previously informed of Plessy's racial lineage, and the intent to challenge the law. Additionally, the committee hired a private detective with arrest powers to detain Plessy, to ensure that he would be charged for violating the Separate Car Act, as opposed to a vagrancy or some other offense. After Plessy took a seat in the whites-only railway car, he was asked to vacate it, and sit instead in the blacks-only car. Plessy refused and was arrested immediately by the detective. As planned, the train was stopped, and Plessy was taken off the train at Press and Royal streets. Plessy was remanded for trial in Orleans Parish.

Jury nullification is, by necessity, a complete undermining of the legal and judicial process. It is essentially taking the Constitutional architecture for our three branches of government, throwing it out the window, and saying "this mob will rule today". To ask a jury to nullify a case is to declare no confidence in the duly-elected representatives, judges, or attorneys involved.

Which in a case like this would have been exactly the right thing to do!

Jury nullification cannot be used to execute or imprison someone who by law might not have been punished. It can only be used in the other direction, to serve notice that in the eyes of the people the law was wrongly applied to this case and that more freedom applies, not less.

Which in a case like this would have been exactly the right thing to do!

Why exactly would it be right in this case?

Microsoft produced a work eligible for copyright. They sell copies of that work. Lundgren made his own copies, distributed them, and benefitted from that distribution of someone else's work. Please tell me why, in very specific terms, it would be just to allow this act?

Jury nullification cannot be used to execute or imprison someone who by law might not have been punished.

Jury nullification can be used to allow offenses to go unpunished. It has been used in the past to allow racist murderers to go unpunished, leaving the victims' families with no recourse for justice.

Because Microsoft had no business sticking it to a developer who took the trouble to preserve Windows licensing in implementing a restore program. Punishment would have been justified if he had been cavalier about Windows IP, but he explicitly did not do that, using a tool that MS gave away for free, so you spare us the inapplicable bleat about “looting someone’s contracted and paid-for labor.”

The *very nature* of jury nullification is that it is the impromptu action of the jury members when their consciences are shocked; it is not something that can be argued to them.

Also, while normally discussed for petit juries (trial), it not only also applies to grand juries, but that aspect is actually enshrined in the US Bill of Rights: the right to indictment by grand jury for felony is *because* the colonial grand juries refused to indict patriots for acts of which they were clearly

I, for one, can't trust that someone promoting nullification can actually respect the law or its application.

That's because you're completely backwards. The exact opposite is true. It's the judges you can't trust. They lie to juries right at the beginning of trials. They say "if the facts are such and such, you must find the defendant guilty". But that's a lie. They have the right to return any verdict they want, and cannot be punished for it. When the judge begins the proceedings with a lie to the people who are supposed to decide guilt, you know that the whole system is corrupt.

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The first phrase is a justification for the second. It should also be noted that the US government has no authority to maintain a standing army, at least, not at the time it was written. There is some debate about that in the present time. So the militia was the army. "regulated" in this context was often used in the period to mean "equipped". A

You make some valid points about jury nullification but I can't agree with the claim that Lundgren violated the spirit or intent of the law... only the letter of the law.

At the end of the day, Microsoft always tries to "have its cake and eat it too" when it comes to Windows licensing. I've worked in I.T. for almost 30 years now, and it's been an underlying theme with Microsoft's products as far as back as I can remember working for a company using them. The "volume licensing" program used to be so complica

In most modern Western legal systems, however, judges often instruct juries to act only as "finders of facts", whose role it is to determine the veracity of the evidence presented, the weight accorded to the evidence, to apply that evidence to the law as explained by the judge, and to reach a verdict; but not to question the law or decide what it says.

It was a clear case of copyright infringement. Lundgren himself admitted that:

the disks had “labels nearly identical to the discs provided by Dell for its computers and had the Windows and Dell logos,” the Times wrote. As a result, Lundgren pleaded guilty to two of 21 charges, conspiracy and copyright infringement. He told the paper, “If I had just written ‘Eric’s Restore Disc’ on there, it would have been fine.”

It probably wouldn't have been fine though, he was still distributing copies of software without the copyright owner's permission.

What he probably could have done legally was write his own software and made restore disks with that. But copying software is much cheaper than writing software.

It probably wouldn't have been fine though, he was still distributing copies of software without the copyright owner's permission.

I don't think that was the issue at all. Is it copyright infringement to distribute software which the copyright holder is already distributing for free? If someone is giving away their ebook for free, are you prohibited from making a copy to give to your friend? I'd have to say no, otherwise I'm in a heap of trouble for all the copies of Office I've installed on systems I've

Because no one is actually looking at this with all the facts, we all just jump on a bandwagon when we read between the lines.From the original news story about the original court case (not the appeal) "He thought that producing and selling restore discs to computer refurbishers — saving them the hassle of downloading the software and burning new discs — would encourage more secondhand sales. In his view, the new owners were entitled to the software, and this just made it easier."

You can freely download and burn the restore disk without any legal ramifications, you CAN NOT sell the restore disk unless you have authorization to do so.

Because no one is actually looking at this with all the facts, we all just jump on a bandwagon when we read between the lines.

Nope! Just not being willfully blind to the draconian punishment being handed down here. A reasonable fine and a suspended sentence (to be wiped after probation is completed) would be more than sufficient. And if it wasn't and the guy went back to selling restore disks...just unsuspend the sentence and then send him to jail. Instead of fucking him over the rest of his life with a

Judges don't have the authority to "usurps the executive powers of the President regarding immigration" but only the legality of how that power is used (hence balance of powers). Without that check the President would become a defacto dictator.

If you are a judge and you have both sides of the political debate upset with you over different rulings you are probably doing your job properly.

Yeah, it's almost as if they view an important part of the judicial branch as being a check on the power of the other branches of government. Of course, that would also mean realizing that the judge didn't "usurp" power, but instead "checked" it. Usurping the power would be if the judges themselves were deporting immigrants.

Because they will ask you during "voir dire" whether you will uphold the judges instructions and weigh the evidence against the law... If you say yes, then you just admitted under oath that you will obey the judge's instructions.

"When I said yes, I didn't realize the [judge's instructions | written law] was going to be so nutty. I went into this with faith and confidence but then your fucked up court showed me that its entire purpose is to harm the

There's your problem. The judges disagreed and felt that $25 was likely.

TBH, while I intensely dislike Windows and would discourage its use if I ever owned my own business, the reality is that the software definitely has a market value of more than $0. Whether it's $25 is up in the air, but the aim was to make old hardware functional, presumably with "functional" being defined as "being capable of running Windows applications"; at the very least, the value of the operating system would be tied to what it would cost to replace the old hardware with equivalent functionality.

My guess is that the ISO is provided free of charge to end users holding a license, but not not to refurbishers for redistribution along with used PCs. Apparently MS sells physical disks to refurbishers for $25 a pop

They sell licenses at that rate to businesses in their refurbisher program (or maybe closer to $30). I don't know whether that includes the physical disk or not, but they would be eligible to download for their own use. Just not profit from a disc replication service.

Ever seen a used PC with the orignal COA scratched off and replaced with a Microsoft Reseller Program COA? That's what this is all about. Microsoft wanted the license to only apply to first owner, but that got struck down in court. So then they strong-armed computer resellers into purchasing low-cost refurbished PC COAs with intimidation and implied threats. (pc shop i worked at didn't fall for it). Every PC this guy sold with the orginal COA was about $20 out of microsoft's pockets.

The fact that the guy didn't charge anything for the disks doesn't make the market value zero, nor does the fact that Microsoft doesn't charge for a download of the disk image. Apparently Microsoft charges refurbishers $25 for a physical copy of the restore disk. And quite possibly there is a clause on the download page for the disk that states that end users can van a copy for free, but distributors are not allowed to burn a copy and sell it along with a refurbished computer.

I'm the OCD type who nearly always keeps everything that came with a new product I purchase, all of the manuals, cables, discs, and depending on size sometimes even the original box it came in.

The last two OEM computers of mine that I've sold, or three if you include the one I gave away, all still had the smaller box insert with everything in them I didn't use, down to the original purchase receipt and the twist-ties for the cables - including whatever pack-in discs that cam

He was burning copies of the software and selling discs to people who had licenses. He wasn't authorized to distribute the software, and he was making money doing so. Those are the requirements for criminal copyright infringement.

If you wanna play with other people's code, you have to follow their rules. Sorry, but that's how proprietary software works in the US. You opt into that system when you decide to buy or sell it.

Personally, I think it's stupid to send him to prison when he was honestly trying to offer a service to others. Maybe he's not allowed to offer that service, but he wasn't trying to hurt anyone either. I believe a minimal fine is reasonable---just enough to say "you're not supposed to do that". The prison sentence is especially pointless when a threat of repeat fines would deter him---he's a businessman, after all.

The blurb is a lie.He sold the software. That is defined as software piracy - a copyright violation.

So if you want to complain about the general state of copyright laws - do that.If you want to propose mob rule above laws - do that.If you want this specific case be handled differently in copyright law - do that.

But don't lie and paint someone that knowingly, willingly pirated software for financial gain as a hero.

Ok, but what percentage of people who buy a refurbished pc then continue on to buy one of these $25 disks from Microsoft? I would guess the percentage is fairly low. It would seem appropriate to reduce the "damages" to reflect this number.

“I thought it was freeware,” Lundgren told the Times. “... The value’s in the license. They didn’t understand that.”

It may be that the value is in the license, but that doesn't change the way the actual laws work. The idea is in the word: "copyright" is a right to make copies. It doesn't matter whether money changed hands: Microsoft has a copyright on those bits, and he copied them without their permission, so legally, he violated their copyright.

Is it a jerk move on Microsoft's part, to prosecute this guy for helping people keep software working which they've already paid for? Sure, and they deserve to be publicly shamed for it.

But there's nothing wrong with this ruling from a legal perspective. Everyone benefits when the law is clear and applied consistently, and in this case it was. Remember that those same laws which allow Microsoft to prosecute a guy for copying "free" bits also allow people who write GPL software to prosecute companies for copying "free" bits without giving back their changes.

Microsoft is part of a group that wants GPL users to go easy on violators and work with them to stop the violation without recourse to courts or financial settlements. Obviously Microsoft doesn't think that philosophy applies to violating their proprietary licenses. Exactly as I expected.

The law (and the court) doesn't care about what society wants or doesn't want. It only cares about what's legal, and the law here is pretty clearly set against Lundgren. He copied other peoples' work without their permission, caused them harm (in the loss of a market for their work), and personally gained (even just fame) from it. Those aren't all necessary factors, but together they make a pretty damning case.

Copyright laws refer to licensing, which in turn stems from contract law, which comes from common-law agreements, which have been enforceable since Babylon. Yes, copyright's a fairly new concept, but it's based on far older ideas.

But there's nothing wrong with this ruling from a legal perspective. Everyone benefits when the law is clear and applied consistently, and in this case it was.

The cost of keeping a person who is no threat to anyone in jail is certainly a loss and no, citizens who bear that cost do not benefit from it. Probation would have been appropriate, the fine was out of balance. Allowing the separation of legal system from a justice system is most definitely part of the problem. Bad law is bad law, even when applied consistently. People like you who stand by bad law and defend bad decisions that defy common sense are part of the problem.

Yes, but like the article points out value matters.Microsoft has a long history proving that the market value of these bits are zero. yes, absolutely, he stole, but he stole a something we know is worth $0 dollars.

From there, do you not have to either pursue a fraud charge, or admit that the guy was just providing a service?

If you're going to make OS restore disks for old computers, make sure that they use open source software!

If this guy was making Ubuntu or CentOS based restore DVD's, he wouldn't be going to prison right now. Sure, he would have got more tech support calls from people who were confused by the new UI, but that's nothing compared through the hell he's going through.

Oh, and I hope that this story gets national attention. Microsoft deserves a good PR hit for going after this guy.

Well, repairing computers is obviously stealing from manufacturers of new ones and re-using valid Windows licenses is obviously stealing from MS! This person got what he deserved for his unpatriotic, almost treasonous actions. True Americans throw things away when they get old or break! This person was trying to sabotage capitalism and the rich getting richer. We cannot have that. So I am 100% behind this ruling, except that the sentence is wayyyy to lenient. Maybe we can find some terrorism charge in there as well? Maybe something like "inciting people to not buy new computers" or the like? After all, this _is_ threatening the stabiliy of society, just like terrorism.

Somebody should send a Tweet to Bill Gates, and ask him how this ruling "helps" his cause for providing technology for low income people and developing countries. Seems like it would do quite the opposite.

Somebody should send a Tweet to Bill Gates, and ask him how this ruling "helps" his cause for providing technology for low income people and developing countries. Seems like it would do quite the opposite.

Where do you think most "recycled" e-waste goes? By extending the life of older computers he is actively preventing poor people in developing countries from getting technology. And even worse, because of this guy, there are kids somewhere in Asia that won't eat tonight because they were unable to sit there in toxic smoke burning off valuable materials from the components of these computers! Why does he hate poor people?

When the post mortem on the US is written a big factor, certainly in the top 5, will be foolish judicial decisions. Some are big, like legal bribery via McDonnell v. United States and saying that cash is free speech, some are small like this one. But too many bad decisions and bad precedents are being made.

Like everyone else here, I'm wracking my brain trying to figure out what the crime was and why the court upheld it. The clue is in these two points:

...in what seems to have been a huge mistake, the disks had “labels nearly identical to the discs provided by Dell for its computers and had the Windows and Dell logos,”

If I had just written ‘Eric’s Restore Disc’ on there, it would have been fine.”

Yeah, he "accidentally" *wink wink, nudge nudge* labeled them just like full-blown licensed copies of Windows. The reality is that It seems like he was trying to pawn these off as actual Windows installs.

Technically, it was the customer's responsibility to understand the EULA and only use this disk on a computer that already has a valid license. But he had no intention of letting people know that. It didn't come with literature explaining that they needed their original license key to install it. He labeled them to look like Dell Windows CDs, and people would think "Score! I got an actual licensed copy of Windows for only 25 cents!"

This is kinda gray in my opinion - is the customer who installs it without a license the one in violation of copyright, or is it the one who makes the CD? In practice, there's no way to go after the person installing it. Instead, they chose to go after the distributor.

The punishment seems too harsh, since he made no profit and this probably ruins his entire life. No normal person will every be able to pay-off that kind of a fine. But I recommend against betting your fortune and freedom on a gray area hole in the law.

Anyone have a link to the court ruling? It should contain the reasoning.

Agreed. They are using copyright to control the means of distribution, which I don't think was the original intent. We've gone too far, so far that even loading the data from disk to memory is considered a "copy" for the purpose of copyright.

So there is an uproar that this guy is penalized for providing copies of software that could be gotten elsewhere for free. It's free, so how could there be a problem?

So let's extend this line of thought. How would any open source license ever be enforceable with that mindset? It's free to get a copy of GPL project, how could the copyright holder have any basis to sue a company for taking that and doing as they please?

As a matter of law, this seems sound. As a matter of good business, it may not be the b

I take back what I said about this being sound. The 'damaged' party should be in the position of suing/not suing and the government shouldn't be doing criminal case for something like this. It seems because he imported the discs, it became a customs issue.

Copyright controls the right to make copies, so the lack of permission is the problem.

Most FOSS projects give everyone permission to download and distribute their code/binaries, but proprietary shops don't. And there's no rule that forces them to grant permission just because the product is free or no longer available for sale. (Maybe there should be, but that's not how it works right now.)

E.g., Disney routinely cycles through their movie catalog, so some titles are out of print for years at a time. If you

if he had just created a restore partition on each of the hard drives. The issue is in providing separate physical media. Had the systems been sold "intact", meaning wiped of all personal information but with HDD partitions in place, there would have been no copyright infringement. He had a great plan but poor execution; he left himself open, and now he will have to pay the price...sad but true.

While there are some interesting posts about various legal topics here, perhaps a summary of what actually happened would be helpful.

Lundgren restore discs were labeled in a way to make them look almost identical to similar restore discs sent out by Dell. Apparently they had Microsoft's Windows logo on them.

He was charging 25 cents each for the discs. This means that in effect he was making money from selling the discs.

Customs intercepted the shipment of his discs, possibly through a random inspection. Microsoft got upset because they deliberately want it to be very difficult to get old, but still legal version of Windows working this way because they want people to just give up a buy a new copy, which makes money for Microsoft.

He pleaded guilty to 2 of 21 charges he faced, which is the main reason he's going to jail. He pleaded guilty. And he may have had some questionable legal representation because some of the arguments he makes against the final verdict are really items that his attorney should have brought up in court, but apparently did not.

Depends on the Linux distribution. If it's RHEL, probably, if it's Debian, probably not. The license has a lot to do with it. You can't download Oracle or Red Hat Linux without a proper license. They may give away licenses to home users and non-profits but for-profit businesses are expected to pay. Another one of those is TeamViewer, plenty of people use it, but in a business setting you're supposed to pay for it and yes, they do go after companies using the free version.

As for the key codes, they're still usable with legally-produced media, like the small stack of old Windows disks I have on a bookshelf, or anything Microsoft (or its licensees) might still produce and sell.

So what he was doing was downloading something freely available and selling it copied to a disk. Not 'stealing' Windows (or any component of it) since a valid Windows license would still be needed by the end user. Essentially, he was charging for the service of burning a copy of the restore utility to a CD.

Sadly, he might have mislead people into thinking it was a Microsoft CD. It was a Microsoft restore utility, just not on their media.

It wasn;'t illegal. Remember, they claim that they're not selling the disk, else they would have to replace damages and loss, but the license to use, hence you "need" an agreement (EULA). Making the disk itself worthless. And, no, if you have a license, you do not need to use the original disks,you just use the license key. Not even the disk s were illegally copied. So complete fail there, moron.